When President Biden soon chooses a successor to Supreme Court Justice Stephen Breyer, journalists will need to keep in mind highly contentious religious issues, not just on matters like abortion but over how much to limit First Amendment claims of religious freedom, as in same-sex disputes, and where to draw lines on church-state separation.
Liberal, secularist and separationist voices are quick out of the gate with warnings to Biden about the Court's 6-3 conservative majority. Americans United for Separation of Church and State wants a new justice who'll be "a bulwark against the court's ultra-conservative majority, who seem set on redefining religious freedom as a sword to harm others instead of a shield to protect all of us." This lobby asserts that "our democracy depends on it."
A must-read from the cry-of-alarm forces is the analysis of numerous recent Supreme Court religion rulings from Ian Millhiser — Vox.com's specialist covering law and "the decline of liberal democracy." He asserts that a religion "revolution" is the "highest priority" of the Court's six Republican appointees, who are "rapidly changing the rules of the game to benefit" religious interests.
However, Kelsey Dallas at Salt Lake City's Deseret News tabulates that Breyer, in tandem with fellow liberal Justice Elena Kagan, voted with conservative justices in nine out of the 13 Court's decisions from 2006 to 2020 that backed religious-freedom claims.
The most illustrative example of the Jewish justice's thinking came in 2005 with two apparently contradictory rulings about Ten Commandments displays on public property. Beyer formed a 5-4 majority to permit the display on the Texas state Capitol grounds (Van Orden v. Perry) but then switched to create a 5-4 majority that outlawed displays in two Kentucky courtrooms (McCready County v. A.C.L.U.)
How come? Breyer advocated the "fullest possible" religious liberty and tolerance to avoid societal conflict.
